Ken Buckner v. Mike Goodman

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 18, 2016 Session

KEN BUCKNER ET AL. v. MIKE GOODMAN ET AL.

Appeal from the Chancery Court for Bradley County

No. 2014-CV-262 Jerri S. Bryant, Chancellor

No. E2016-00150-COA-R3-CV-FILED-DECEMBER 29, 2016

This case involves a contract to purchase a home on the sellers‟ condition that the home

be removed from the sellers‟ real property at the buyers‟ expense. The sellers and the

buyers entered into a written contract on January 25, 2013, at which time the buyers paid

a $2,500 deposit toward an agreed price of $5,000 for the home. The contract did not set

forth a deadline for the home to be removed from the sellers‟ property, although the

sellers were required to demonstrate to the lender financing their new construction loan

that the home had been removed. The buyers contacted several potential house movers to

transport the home but did not execute a final written contract with any of them. The

sellers subsequently entered into a written agreement with movers who had originally

been contacted by the buyers, retaining the movers to “take possession” of the home and

transport it but providing the original buyers a first option to purchase. After learning of

the agreement between the sellers and the movers, the buyers contacted the movers,

“firing” them. The sellers then had the home demolished. The buyers filed a complaint

against the sellers, alleging breach of a home sales contract. The sellers filed a counter-

complaint, alleging that the buyers had materially breached the contract first by failing to

timely remove the home. The buyers subsequently filed a second complaint against the

movers, alleging intentional interference with contractual relations. The trial court

consolidated the two actions. Following presentation of the buyers‟ proof during a bench

trial, the trial court found that the buyers had materially breached the contract. The court

granted the sellers‟ and the movers‟ respective motions for involuntary dismissal

pursuant to Tennessee Rule of Civil Procedure 41.02. Upon hearing the sellers‟ evidence

regarding damages, the court entered a judgment in favor of the sellers in the amount of

$5,200, comprised of $7,700 in total damages offset by the $2,500 previously paid by the

buyers. The buyers timely appealed. Discerning no reversible error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and ANDY D. BENNETT, J., joined.

William J. Brown, Cleveland, Tennessee, for the appellants, Ken Buckner and Brenda

Buckner.

James F. Logan, Jr., Cleveland, Tennessee, for the appellees, Mike Goodman and Cindy

Goodman.

Jerrold L. Becker, Knoxville, Tennessee, for the appellees, Hugh Edward Mayes and Kay

Mayes d/b/a B&B Construction/B&B Moving and Foundation Services.

OPINION

I. Factual and Procedural Background

In November 2013, defendants Mike Goodman and Cindy Goodman (“the

Goodmans”) were building a new home, intending to replace the approximately 1,500-

square-foot home (“the Home”) in which they had been residing on their real property

located at 1192 Hunt Road in Cleveland, Tennessee (“the Property”). The Goodmans

placed a notice in the Tennessee Trader, a classified advertising circular, stating that they

were offering the existing house for sale “[t]o be moved off property.” The plaintiffs,

Ken Buckner and Brenda Buckner (“the Buckners”), contacted the Goodmans on

November 27, 2013. Over the telephone, Ms. Buckner and Mr. Goodman agreed on a

purchase price of $5,000 for the Home, provided that the Buckners would remove the

Home from the Property and pay the attendant cost.

On January 25, 2013, the Buckners and the Goodmans entered into a written

contract (“the Contract”), and the Buckners paid a $2,500 deposit toward purchase of the

Home. The Contract, which was drafted in handwritten form by Ms. Goodman, was

signed by Mr. Buckner as the “Buyer” and both Mr. and Ms. Goodman as the

“Seller[s].”1 The text of the Contract states in full:

1

Although Ms. Buckner did not sign the Contract, it is undisputed that she was a party to the agreement

between the Buckners and the Goodmans. Furthermore, we determine that Ms. Buckner was a party to

the agreement based on her testimony that she initially negotiated the price, subsequently reviewed the

Contract after its execution, and agreed with the written terms as she understood them. See Staubach

Retail Servs.-Se., LLC v. H.G. Hill Realty Co., 160 S.W.3d 521, 524 (Tenn. 2005) (“[A] written contract

is not required to be signed to be binding on the parties.”); cf. Moody Realty Co. v. Huestis, 237 S.W.3d

666, 678 (Tenn. Ct. App. 2007), perm. app. denied (Tenn. Aug. 13, 2007) (determining that a party‟s wife

who had not signed the contract at issue was not a party to the contract based on “the absence of her

signature, the wording of the document itself, and the surrounding circumstances . . . .”).

2

Mike & Cindy Goodman has sold the brick home located at 1192 Hunt Rd.

Cleveland. TN to Ken Buckner for the amount of $5000.00 dollars. The

house is sold as is and will be moved off the property.

A deposit of $2500.00 has been paid. Remainder will be paid when

house is moved.

The Goodmans filed a notice of completion for their newly constructed home with

their lender on January 14, 2013. The parties‟ respective testimonies differed as to when

an understanding existed between the Buckners and the Goodmans that the original

Home needed to be moved by a certain date. Mr. Goodman testified via deposition that

in early January, he informed Mr. Buckner that the Home had to be moved soon because

the Goodmans‟ construction loan period was ending. According to Mr. Goodman, Mr.

Buckner told him that a mover had given him a date of February 4, 2013, to move the

Home. Mr. Goodman stated that he then set the closing on the Goodmans‟ construction

loan for ten days following this date, or February 14, 2013.

Testifying during trial, Mr. Buckner denied that he had a mover identified on

February 4, 2013. According to Mr. Buckner, he and his wife did not learn of any

specific time period for moving the Home until Mr. Goodman called him on January 29,

2013, four days following the Contract‟s execution, and informed him that the lender was

requiring the Goodmans to have the Home removed from the Property by February 14,

2013, in order to convert the construction loan to permanent financing. Mr. Buckner

maintained that he told Mr. Goodman he would “try” to have the Home removed by

February 14, 2013, but did not promise this would be accomplished.

The Buckners contacted at least three potential house movers regarding removal of

the Home to acreage owned by the Buckners in Cleveland. Prior to execution of the

Contract and upon Mr. Goodman‟s recommendation, the Buckners initially contacted a

mover named Tom Rutledge regarding an estimate to move the Home, but the Buckners

and Mr. Rutledge were unable to reach an agreement. The Buckners then contacted a

potential mover named Donald Payne. Mr. Buckner testified that he met Mr. Payne at the

Home on January 6, 2013, and that he and Mr. Payne inspected the Home after being

admitted by Ms. Goodman‟s mother. According to Mr. Buckner, the Home was “packed

clean to the ceiling with boxes” at that time, and Mr. Payne said he would not be able to

commit to the move because he was scheduled to leave the country a few days later.

Mr. Buckner further testified that on February 2 or 3, 2013, he contacted

defendants Edward and Kay Mayes d/b/a B&B Construction and B&B Moving and

Foundation Services (“the Mayeses”), regarding potentially hiring them to move the

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Home. Although Ms. Mayes testified that this initial contact occurred on February 1,

2013, while Mr. Mayes stated it occurred on February 5, 2013, it is undisputed that the

Mayeses sent a proposed contract to the Buckners via facsimile on February 6, 2013, with

a total estimated price for moving the Home of $21,000. According to Mr. Buckner, he

contacted Ms. Mayes via telephone the same day and stated that he did not agree with

some provisions of the proposed contract. She told him to mark his proposed changes

and return it. The Buckners maintained that they returned a marked version of the

contract to the Mayeses via facsimile on February 8, 2013. According to Mr. and Ms.

Buckner‟s respective testimonies, they repeatedly attempted to contact the Mayeses prior

to February 14, 2014, but received no response except for one brief telephone

conversation with Mr. Mayes during which he said that he would get back to Mr.

Buckner. Mr. Buckner testified that he made initial contact with three other house

movers while waiting for a response from the Mayeses.

In contrast, the Mayeses, testifying via deposition, each respectively claimed never

to have seen the Buckners‟ marked version of the proposed contract until it was produced

during the pre-trial discovery process. Mr. Mayes testified that following Mr. Buckner‟s

initial contact, he met Mr. Buckner at the Property on February 5, 2013, viewed the

Home, and then drove to the Buckners‟ property to which the Home purportedly would

be moved. According to Mr. Mayes, Mr. Buckner informed him that he had only seven

days to move the Home. Mr. Mayes testified that following his visits to the Goodmans‟

and Buckners‟ respective properties, still on February 5, 2013, he told Mr. Buckner that

he would not be able to move the Home within seven days because of obstacles posed by

power lines, trees, and the Property‟s topography. Mr. Mayes also stated that he advised

Mr. Buckner that a permit would be needed from “environmental health” before the

Home could be placed on the Buckners‟ property. Mr. Mayes maintained that he told Mr.

Buckner on February 5, 2013, that he would speak to Mr. Goodman in an attempt to

determine whether anything could be done to extend the February 14 deadline.

According to Mr. Mayes, he spoke to Mr. Buckner “several times” over the next few

days. It is undisputed that the Mayeses and the Buckners never entered into a contract or

reached an agreement.

Mr. Goodman testified at trial that he and his wife obtained an extension on the

closing date of their construction loan to February 25, 2013, for which they had to pay a

$1,000 penalty. They were also required to pay $100 per day in additional interest fees.

Mr. Goodman stated that while he was contemplating the need to obtain an extension, he

contacted Mr. Buckner via telephone on February 12 or 13, 2013, and offered him an

extension of time to move the Home if he would pay the $1,000 penalty. According to

Mr. Goodman, Mr. Buckner agreed over the telephone to pay the $1,000 penalty the next

day in person but then failed to appear or provide the penalty fee.

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In the meantime, Mr. Mayes and Mr. Goodman came to an understanding on

February 14, 2013, that if the Home could be moved to a parcel of land owned by the

Goodmans that was adjacent to the Property at issue, the Goodmans‟ lender would be

satisfied and the Buckners could be allowed additional time to move the Home to their

property. On February 15, 2013, the Goodmans and the Mayeses entered into a written

agreement (“Goodman-Mayes Agreement”), “confirming [their] conversation and

agreement by telephone on Thursday, February 14, 2013 . . . .” According to the

Goodman-Mayes Agreement, the Mayeses, doing business as B&B House Movers,

would “take possession” of the Home and “remove the house to the lot adjacent of the

right side of existing house to location on the same property to be determined by Mr.

Goodman to serve as a staging area until house can be moved to permanent location.”

The Goodman-Mayes Agreement provided that Mr. Buckner was granted a “first option

to purchase the said house for a move bill plus expenses of removing telephone lines,

power poles and any utilities.” The Goodman-Mayes Agreement further provided that

upon sale of the Home by B&B House Movers, Mr. Goodman would receive “a

minimum of $3,000 for his interest in said house with an option for an additional

percentage to be agreed upon.” If the Home did not sell within sixty days after removal

to the adjacent lot, the Goodman-Mayes Agreement provided that the Mayeses would

begin making a lease payment of $350 per month to the Goodmans.

At trial, the Buckners presented two voice mail recordings left on Ms. Buckner‟s

cellular telephone. In the first, dated February 14, 2013, Mr. Mayes explained the

agreement reached by the Mayeses and Goodmans, stating that he would sell the Home to

the Buckners for the “move bill.” In the second voice mail, dated February 15, 2013, Ms.

Mayes repeated an explanation of the agreement and stated that the Buckners would have

an “option” to purchase the Home. In his deposition testimony, Mr. Mayes testified that

he spoke with Mr. Buckner for thirty to forty-five minutes during the evening of February

14, 2013, attempting to explain his intention to preserve the Home and resolve the

situation favorably for everyone involved. It is undisputed that Mr. Buckner

subsequently telephoned Ms. Mayes and stated that the Mayeses were “fired if they had

anything to do with the house.”2

Mr. Buckner testified that he also spoke to Mr. Goodman via telephone on

February 15, 2013, and expressed his belief that he and Ms. Buckner had already

purchased the Home when they paid $2,500 and signed the Contract. It is undisputed that

Mr. Goodman offered to return the $2,500 to the Buckners during this conversation and

that Mr. Buckner refused to accept a refund. According to Mr. Goodman, Mr. Buckner

then told him to “keep the money and tear the house down.” At trial, Mr. Buckner denied

having made this statement. Mr. Goodman acknowledged that the ultimate decision to

2

Although Ms. Mayes testified that Mr. Buckner “fired” them on the morning of February 14, 2013, Mr.

Mayes and Mr. Buckner each respectively testified that this conversation occurred on February 15, 2013.

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demolish the Home was his. He and Mr. Mayes each respectively testified that Mr.

Mayes, after receiving the message that Mr. Buckner had called and “fired” the Mayeses,

called Mr. Goodman and advised him that he might need to demolish the Home in order

to avoid a lawsuit.

On February 16, 2013, the Goodmans had the Home demolished and removed in

pieces. Mr. Goodman informed the Buckners of the demolition on February 23, 2013,

through a voice mail, again offering to return the Buckners‟ $2,500 deposit to them. The

Buckners did not accept a return of the deposit. Mr. Buckner testified that he previously

had learned of the demolition on February 16, 2013, through a telephone call from his

daughter, who had witnessed a portion of the demolition.

On February 27, 2013, the Buckners filed a complaint against the Goodmans,

alleging breach of the Contract for sale of the Home. The Goodmans filed an answer and

counter-complaint on July 13, 2013, alleging that the Buckners had materially breached

the Contract by failing to timely remove the Home from the Property. On November 19,

2014, the Buckners filed a complaint against the Mayeses, alleging common law and

statutory claims for intentional interference with contractual relations and requesting

treble damages pursuant to Tennessee Code Annotated § 47-50-109. Upon the Buckners‟

motion, the trial court consolidated the two actions in an order entered May 20, 2015.

The trial court conducted a trial over the course of two days on September 16,

2015, and October 8, 2015. Mr. and Ms. Buckner each respectively testified. In addition,

the parties stipulated to admission of Mr. and Ms. Goodman‟s respective deposition

testimonies and redacted versions of Mr. and Ms. Mayes‟s respective deposition

testimonies as exhibits. In an attempt to demonstrate their damages, the Buckners called

a certified home appraiser, Billy Thacker, to testify to the value of the Home. The

Buckners had retained Mr. Thacker to estimate the value of the Home in January 2013.

Using what he termed a “cost approach,” Mr. Thacker estimated the value of the Home

on its foundation on the Property as $87,528. To estimate the value of the Home if it

were removed from the foundation and placed on “rails” to be moved, Mr. Thacker stated

that he would deduct $21,000 for the cost of the move and $12,000 for the brick material

that would be removed, for a total estimated value of $54,000. Mr. Thacker

acknowledged that he had not performed a full walk-through appraisal and had reached

his estimate by viewing a photograph of the Home.

Following presentation of the Buckners‟ proof, the Goodmans and the Mayeses

each respectively moved for involuntary dismissal of the Buckners‟ complaints pursuant

to Tennessee Rule of Civil Procedure 41.02. The trial court granted the motions and

dismissed the Buckners‟ complaints with prejudice upon finding that the Buckners had

“caused the breach of the contract to the Goodmans by failing to get the house moved

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within the time allotted,” which the court found to have ended on February 14, 2013.

The court also found that the Mayeses could not have interfered with the Contract

because the Contract was no longer enforceable at the time the Mayeses entered into the

Goodman-Mayes Agreement. The court further found that the Buckners had failed to

establish an intent to induce a breach or any malicious behavior on the part of the

Mayeses. Prior to granting the motions for involuntary dismissal, the court also found

that Mr. Thacker‟s valuation of the Home was too speculative to be probative, stating:

“The plaintiff bargained for a house for $5,000 and that‟s the only proof of what value it

would have been.”

Proceeding with trial, still on October 8, 2015, the trial court heard evidence

presented by the Goodmans on their breach of contract claim, including testimony by Mr.

Goodman. Upon finding that the Buckners had breached the Contract by failing to timely

remove the Home from the Property, the court further found that the Goodmans had

incurred a total of $7,700 in damages, including $6,000 for the cost of removal; a $1,000

penalty to extend their construction loan; and $700 in interest fees, consisting of $100 per

day for seven days. Offsetting the damages by the $2,500 the Buckners previously had

paid toward purchase of the Home, the court entered a judgment in the amount of $5,200

in favor of the Goodmans. The Buckners timely appealed.

II. Issues Presented

The Buckners present three issues on appeal, which we have restated as follows:

1. Whether the trial court erred by finding that the Buckners materially

breached the Contract by failing to remove the Home from the

Property by February 14, 2013.

2. Whether the trial court erred by dismissing the Buckners‟ claim

against the Mayeses for intentional interference with contractual

relations between the Buckners and the Goodmans.

3. Whether the trial court erred by declining to accept testimony

proffered by the Buckners‟ expert witness regarding the fair market

value of the Home when removed from the foundation.

The Goodmans present two additional issues, which we have similarly restated as

follows:

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4. Whether the trial court erred by granting the Goodmans‟ motion to

dismiss the Buckners‟ claim of breach of contract against the

Goodmans.

5. Whether the Buckners‟ appeal is frivolous such that the Goodmans

are entitled to an award of attorney‟s fees and costs on appeal

pursuant to Tennessee Code Annotated § 27-1-122.

Finally, the Mayeses present two additional issues, which we have restated as follows:

6. Whether the Buckners have failed to comply with the requirements

of Tennessee Rule of Appellate Procedure 27(a)(7) such that they

have waived their appeal of the trial court‟s dismissal of the claim

for intentional interference with contractual relations, or in the

alternative, whether the Buckners have waived their appeal of the

common law claim regarding this tort by presenting argument solely

in support of a statutory claim pursuant to Tennessee Code

Annotated § 47-50-109.

7. Whether the Buckners‟ appeal is frivolous such that the Mayeses are

entitled to an award of attorney‟s fees and costs on appeal pursuant

to Tennessee Code Annotated § 27-1-122.

III. Standard of Review

Our review of the trial court‟s judgment following a non-jury trial is de novo upon

the record, with a presumption of correctness as to the trial court‟s findings of fact unless

the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Rogers v.

Louisville Land Co., 367 S.W.3d 196, 204 (Tenn. 2012). “In order for the evidence to

preponderate against the trial court‟s findings of fact, the evidence must support another

finding of fact with greater convincing effect.” Wood v. Starko, 197 S.W.3d 255, 257

(Tenn. Ct. App. 2006) (citing Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d

291, 296 (Tenn. Ct. App. 2001)). Likewise, our review of the trial court‟s decision to

grant a Tennessee Rule of Civil Procedure 41.02 motion for involuntary dismissal is also

de novo upon the record, with a presumption of correctness as to the trial court‟s findings

of fact unless the preponderance of the evidence is otherwise. See Tenn. R. App. P.

13(d); Boyer v. Heimermann, 238 S.W.3d 249, 254 (Tenn. Ct. App. 2007), perm. app.

denied (Tenn. Aug. 13, 2007) (“This standard is appropriate because the trial court has

used the same reasoning to dispose of the motion that it would have used to make a final

decision at the close of all the evidence.”).

8

As this Court has explained:

When a motion for involuntary dismissal is made at the conclusion

of the plaintiff‟s proof in a bench trial, “the trial court must impartially

weigh the evidence as though it were making findings of fact and

conclusions of law after all the evidence has been presented.” Building

Materials Corp. v. Britt, 211 S.W.3d 706, 711 (Tenn. 2007); Thompson v.

Hensley, 136 S.W.3d [925,] 929 [(Tenn. Ct. App. 2003)]; see also Burton v.

Warren Farmers Coop., 129 S.W.3d at 520. If a plaintiff has failed to

demonstrate her right to relief by a preponderance of the evidence under the

facts as found by the court and pursuant to the applicable law, then the case

should be dismissed. Building Materials Corp. v. Britt, 211 S.W.3d at 711;

Burton v. Warren Farmers Coop., 129 S.W.3d at 520-21.

Boyer, 238 S.W.3d at 254.

We review the trial court‟s conclusions of law, including its interpretation of a

written agreement, de novo with no presumption of correctness. See Ray Bell Constr. Co.

v. State, Tenn. Dep’t of Transp., 356 S.W.3d 384, 386 (Tenn. 2011); Cracker Barrel Old

Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009). While “„the amount

of damages to be awarded in a particular case is essentially a fact question,‟” “„the choice

of the proper measure of damages is a question of law . . . .‟” GSB Contractors, Inc. v.

Hess, 179 S.W.3d 535, 541 (Tenn. Ct. App. 2005) (quoting Beaty v. McGraw, 15 S.W.3d

819, 827 (Tenn. Ct. App. 1998), Beaty abrogated on other grounds by Bowen ex rel. Doe

v. Arnold, ___ S.W.3d ___, No. M2015-00762-SC-R11-CV, 2016 WL 5491022 (Tenn.

Sept. 29, 2016)).

We note that prior to granting the motions for involuntary dismissal in the instant

action, the trial court was presented with live testimony from the Buckners and their

expert witness while reviewing solely deposition testimony from the Goodmans and the

Mayeses, the admission of which was stipulated to by all of the parties. Mr. Goodman

did testify in person during the damages portion of the trial. The trial court‟s

determinations regarding witness credibility during live testimony are entitled to great

weight on appeal and shall not be disturbed absent clear and convincing evidence to the

contrary. See Lambdin v. Goodyear Tire & Rubber Co., 468 S.W.3d 1, 10 (Tenn. 2015);

Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). However, we review the trial court‟s

determinations regarding witness credibility during deposition testimony de novo upon

the record with a presumption of correctness as to the trial court‟s findings of fact unless

the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Lambdin,

468 S.W.3d at 10.

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IV. Breach of Contract

The Buckners contend that the trial court erred in finding that they materially

breached the Contract by failing to remove the Home from the Property by February 14,

2013. The court thereby found that the Buckners could not recover damages from the

Goodmans under the Contract because the Buckners committed the first material breach.

See Madden Phillips Constr, Inc. v. GGAT Dev. Corp., 315 S.W.3d 800, 813 (Tenn. Ct.

App. 2009), perm. app. denied (Tenn. Mar. 15, 2010) (“Ordinarily, a party who first

materially breaches may not recover under the contract.”). The Buckners specifically

argue that the Contract contained no indication of a time deadline or provision that time

was of the essence for removal of the Home. Although the Buckners phrase this issue in

terms of whether the court erred by finding them in breach of contract, the Goodmans

directly raise the related issue of whether the court then erred by granting the Goodmans‟

motion to dismiss the Buckners‟ complaint against the Goodmans. The Goodmans argue

that the trial court properly dismissed the Buckners‟ complaint because removal of the

Home by the initial closing date of the Goodmans‟ construction financing was a material

part of the contract. Upon our thorough review of the record and applicable authorities,

we determine that the evidence preponderates in favor of the trial court‟s findings that a

reasonable timeframe for removal of the Home was implied by the Contract and that the

Buckners had been given sufficient notice that this reasonable timeframe would end on

February 14, 2013.

“In a breach of contract action, claimants must prove the existence of a valid and

enforceable contract, a deficiency in the performance amounting to a breach, and

damages caused by the breach.” Fed. Ins. Co. v. Winters, 354 S.W.3d 287, 291 (Tenn.

2011). In this action, it is undisputed that the January 25, 2013 Contract between the

Buckners and Goodmans was a valid and enforceable contract at the time of its

execution. It is also undisputed that neither the Buckners nor the Goodmans fully

performed according to the Contract. Regarding the significance of determining which

party to a contract committed the first material breach, this Court has explained:

A party who has materially breached a contract is not entitled to

damages stemming from the other party‟s later material breach of the same

contract. John P. Saad & Sons, Inc. v. Nashville Thermal Transfer Corp.,

715 S.W.2d 41, 47 (Tenn. 1986); Cummins v. McCoy, 22 Tenn. App. 681,

691, 125 S.W.2d 509, 515 (1938). Thus, in cases where both parties have

not fully performed, it is necessary for the courts to determine which party

is chargeable with the first uncured material breach. See Restatement

(Second) of Contracts § 237 comment b (1979).

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McClain v. Kimbrough Constr. Co., 806 S.W.2d 194, 199 (Tenn. Ct. App. 1990). See

also Markow v. Pollock, No. M2008-01720-COA-R3-CV, 2009 WL 4980264, at *5

(Tenn. Ct. App. Dec. 22, 2009) (“When one party to a contract materially breaches the

same, is unable to perform, or manifests an intention to no longer be bound by the

contract, the non-breaching party is excused from further performance.”).

Factors to consider when determining whether a party‟s breach of a contract is

material include:

(a) the extent to which the injured party will be deprived of the benefit

which he reasonably expected;

(b) the extent to which the injured party can be adequately compensated

for the part of that benefit of which he will be deprived;

(c) the extent to which the party failing to perform or to offer to perform

will suffer forfeiture;

(d) the likelihood that the party failing to perform or to offer to perform

will cure his failure, taking account of all the circumstances

including any reasonable assurances;

(e) the extent to which the behavior of the party failing to perform or to

offer to perform comports with standards of good faith and fair

dealing.

McClain, 806 S.W.2d at 199 (quoting Restatement (Second) of Contracts § 241 (1979));

see also Markow, 2009 WL 4980264, at *5.

In interpreting a contract, our “initial task is to determine whether the language in

the contract is ambiguous.” Ray Bell, 356 S.W.3d at 386-87 (citing Planters Gin Co. v.

Fed. Compress & Warehouse Co., 78 S.W.3d 885, 890 (Tenn. 2002)). “If the contract

language is unambiguous, then the parties‟ intent is determined from the four corners of

the contract.” Ray Bell, 356 S.W.3d at 387 (citing Whitehaven Cmty. Baptist Church v.

Holloway, 973 S.W.2d 592, 596 (Tenn. 1998)). This Court has explained the principles

applied to determine whether the contract language is clear or ambiguous as follows:

The language in dispute must be examined in the context of the entire

agreement. Cocke County Bd. of Highway Commrs. v. Newport Utils. Bd.,

690 S.W.2d 231, 237 (Tenn. 1985). The language of a contract is

ambiguous when its meaning is uncertain and when it can be fairly

11

construed in more than one way. Farmers-Peoples Bank v. Clemmer, 519

S.W.2d 801, 805 (Tenn. 1975). “A strained construction may not be placed

on the language used to find ambiguity where none exists.” Id.

VanBebber v. Roach, 252 S.W.3d 279, 284 (Tenn. Ct. App. 2007), perm. app. denied

(Tenn. Mar. 3, 2008). It is well-settled that “ambiguities in a contract are to be construed

against the party drafting it.” Frank Rudy Heirs Assocs. v. Moore & Assocs., Inc., 919

S.W.2d 609, 613 (Tenn. Ct. App. 1995). “The parol evidence rule does not permit

contracting parties to „use extraneous evidence to alter, vary, or qualify the plain meaning

of an unambiguous written contract.‟” Staubach Retail Servs.-Se., LLC v. H.G. Hill

Realty Co., 160 S.W.3d 521, 525 (Tenn. 2005) (quoting GRW Enters. v. Davis, 797

S.W.2d 606, 610 (Tenn. Ct. App. 1990)). However, “when a contractual provision is

ambiguous, a court is permitted to use parol evidence, including the contracting parties‟

conduct and statements regarding the disputed provision, to guide the court in construing

and enforcing the contract.” Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 612 (Tenn.

2006).

As the Buckners note, the Contract, drafted by Ms. Goodman, omitted any

mention of a timeframe for removal of the Home. The text of the Contract provided in

full:

Mike & Cindy Goodman has sold the brick home located at 1192 Hunt Rd.

Cleveland. TN to Ken Buckner for the amount of $5000.00 dollars. The

house is sold as is and will be moved off the property.

A deposit of $2500.00 has been paid. Remainder will be paid when

house is moved.

The Buckners argue that the omission of a timeframe for removal constituted an

unambiguous agreement that time was not a material term of the Contract. They thereby

argue that the trial court erred by considering parol evidence concerning any agreement

between the Buckners and the Goodmans as to a deadline for the Home to be moved. We

disagree.

As this Court has explained:

[W]here the parties have unambiguously set out the terms of their

agreement, courts will enforce those terms as written, regardless of any

inequity arising from that enforcement. On the other hand, courts may

incorporate a reasonableness requirement into any contract. Moore v.

Moore, 603 S.W.2d 736 (Tenn. Ct. App. 1980). In Moore, this court was

12

called upon to interpret a provision in a real estate sales contract that made

the contract contingent upon the buyer‟s “ability to obtain adequate

financing.” The proof showed that although the buyer was unable to secure

financing in Shelbyville, where the property was located, he was able to

obtain adequate financing in Nashville. In this factual context, the court

stated that, “a qualifying word which may be read into every contract is the

word „reasonable,‟ or its equivalent „reasonably.‟” Id. at 739.

Consequently, the court interpreted the contingency as meaning “reasonable

ability to obtain sufficient financing by ordinary, recognized means.” Id.

The court then found that the contract was subject to reasonable application

of the words used therein “according to the known situation of the parties,”

but was not ambiguous. Id.

The Moore court‟s language that reasonableness may be read into

every contract has been quoted, cited, and applied in a number of cases

decided by this court. See, e.g., Hurley v. Tenn. Farmers Mut. Ins. Co., 922

S.W.2d 887, 892 (Tenn. Ct. App. 1995) (holding that insurance company‟s

demand for production of financial records and assertion that insured‟s

failure to produce was a breach of the cooperation clause of the insurance

contract could be considered unreasonable). In fact, in some instances, we

have stated that the qualifying word “reasonable” must be read into every

contract. Minor v. Minor, 863 S.W.2d 51, 54 (Tenn. Ct. App. 1993). In

Minor, because the contract did not include a time for performance, a

reasonable time was implied, based upon Moore and upon the well-settled

rule that missing contract terms may be implied. Id. In McClain v.

Kimbrough Constr. Co., 806 S.W.2d 194, 198 (Tenn. Ct. App. 1991), this

court held that “the extent of contractual obligations should be tempered by

a „reasonableness‟ standard,” citing Moore.

Pylant v. Spivey, 174 S.W.3d 143, 152 (Tenn. Ct. App. 2003), perm. app. denied (Tenn.

June 1, 2004) (underlined emphasis added).

In its ruling at the close of the Buckners‟ proof, subsequently incorporated into the

final order, the trial court found that the Contract “does not contradict what the parol[]

testimony is about the terms of the agreement between the parties but there was no term

of time in the receipt or the document.” Regarding the testimonial evidence concerning

the purported deadline for removal, the trial court stated in pertinent part:

[W]hen I‟m looking at the balance of the testimony between the Buckners

and Mr. Goodman . . . I find that the evidence supports Mr. Goodman‟s

version that Mr. Buckner knew that [the Home] had to be off by February

13

the 14th at the worst and possibly he knew that he was supposed to get it

off – if I take Mr. Goodman‟s version of the facts as true, which is a

different version that‟s not been totally denied by the Buckners, that [the

Buckners] knew to have it off by the 4th of February and he, Goodman, set

his closing date ten days after that so that it would give them time for

something else to happen.

Time may not have been of the essence in the contract but it became

important by the manifested intention of the parties based on this subject

matter and by implication from the facts.

The parties stipulated the house was destroyed on 2/16. The

Buckners knew the [Goodmans] had to get an extension on their loan

because they didn‟t have the house off by the 14th. And if there was a

contract that was binding at that point they had one more day to bring the

$1,000 [for the Goodmans‟ loan extension penalty] and did not do so.

[The Buckners] admit they told Mayes the house had to be moved by

February the 14th. Mayes sent [the Buckners] a contract and Mayes was

standing ready to perform the contract but [Mr. Buckner] marked it up and

made several changes that were not agreed to by Mayes. I do think at this

point because of the urgency of the situation that Goodman and Mayes tried

to work this out with Mr. Buckner and Mr. Buckner began accusing them

of stealing the house from him and that I think was the final straw that

quirked this deal.

[The Buckners] admit they were told by Mayes that they would

move the house to the – that he would move the house to the adjacent lot so

that the Goodmans could close and the [Buckners] could still have the

house for the cost of the move. [The Buckners] refused. [The Buckners]

are the one[s] who caused the breach of the contract to the Goodmans by

failing to get the house moved within the time allotted. At this point the

[Goodmans were] allowed to act as they please[d].

The trial court thus found that although a term of time for removal of the Home was not

provided in the Contract, a reasonable time “became important by the manifested

intention of the parties based on this subject matter and by implication from the facts.”

When questioned during his deposition testimony regarding how the date of

February 14, 2013, came to be the deadline by which the Goodmans needed the Home to

be moved, Mr. Goodman stated that in order to close on their construction loan and

14

convert it to permanent financing, he and Ms. Goodman needed to demonstrate to their

lender, arranged through the Bank of Cleveland, that the Home had been removed from

the Property. Their construction loan was initially for a period of approximately one

year, which would have expired in the spring of 2013. However, the Goodmans were

concerned that they would continue to pay higher interest rates as long as the loan

remained one for construction purposes. Mr. Goodman testified that during the first

week of January 2013, he was under the impression that Mr. Buckner had engaged Mr.

Rutledge to move the Home but had encountered a problem with a tree that would have

to be removed and with a particularly tight curve on the route Mr. Rutledge believed he

needed to follow. Mr. Goodman stated that he contacted a county official during this

time and obtained permission for removal of the tree. He also talked to Mr. Rutledge

about an alternate route for the mover to follow, which Mr. Goodman believed had

solved the concern over the tight curve.

According to Mr. Goodman, it was during a telephone conversation in which he

was updating Mr. Buckner regarding the tree and route concerns that Mr. Buckner stated

he had not been able to reach an agreement with Mr. Rutledge, describing an incident

when Mr. Rutledge purportedly became upset, at least in part because Mr. Buckner

admittedly refused to enter into a contract that would require partial payment up front.

Mr. Buckner, however, informed Mr. Goodman during the same telephone conversation

that he had a second mover in mind.3 When Mr. Buckner told him about the second

mover, Mr. Goodman asked Mr. Buckner if the mover had quoted a date for removal of

the Home from the Property. Mr. Goodman testified that he told Mr. Buckner, “we‟re

pushing here. . . . I‟m at the end of my construction, and I‟m needing to wrap it up.”

According to Mr. Goodman, Mr. Buckner told him that “the house would be moved by

the 4th of February.” In response, Mr. Goodman told Mr. Buckner that he “would give

[him] ten days” past February 4 and set the construction loan closing for February 14,

2013. According to Mr. Goodman, Mr. Buckner told him to go ahead and set the closing

date. The Goodmans then contacted their lender and set the loan closing date for

February 14, 2013. Mr. Goodman testified that once they had set the closing date, they

were required to pay a $1,000 penalty and $100 per day in interest in order to change the

date.

Mr. Goodman further testified that two days after the telephone call when they had

agreed that the Goodmans would set February 14, 2013, for their loan closing, Mr.

Buckner called to inform Mr. Goodman that the second mover was leaving the country

on a mission trip and would not be able to move the Home. When questioned regarding

3

Although Mr. Goodman stated that Mr. Buckner never told him the name of the second mover, Mr.

Buckner‟s testimony regarding the corresponding time frame indicated that the second mover was Mr.

Payne.

15

his response when Mr. Buckner informed him that the second mover would not be able to

do the job, Mr. Goodman stated:

I was just like, we need to get going here. We‟re running out of

time, you know, because we‟re getting towards the end of January, and I‟m

closing on the 14th. So, you know, it‟s going to take a few days to get the

house moved. Not even off the property, but off its foundation. So he got

another mover at that time.

In contrast, Mr. Buckner testified that he and his wife did not learn until January

29, 2013, of the Goodmans‟ need to have the Home removed by February 14, 2013. He

maintained that when he executed the Contract on January 25, 2013, Mr. Goodman told

him that he “had all the time in the world” to move the Home. According to Mr.

Buckner, then on January 29, 2013:

Mike Goodman calls me and says that he had took that paper [the

Contract] to his bank and that he was going to use it to do something with

his financial work. I didn‟t go into it. But anyway, he said now, he said,

I‟ve got to have the house moved. And I think he only gave me like 14

days. He had to get the house moved in 14 days.

Mr. Buckner stated that he had told Mr. Goodman he would do the best he could to move

the Home by February 14 but that he had not promised to move the Home by that date.

Ms. Buckner also testified that she and her husband did not learn of the February 14,

2013 deadline until January 29, 2013.

Mr. Buckner acknowledged that when he first contacted the Mayeses regarding

moving the Home, he met Mr. Mayes on the Property and informed him that the

Goodmans needed the Home moved by February 14, 2013. Mr. Buckner‟s testimony

also indicated that he had seen Ms. Goodman carrying groceries into the Goodmans‟ new

home on the date he entered the Contract, January 25, 2013. When questioned regarding

whether he knew prior to January 29, 2013, that the Goodmans were building a new

house, Mr. Buckner acknowledged that he and Mr. Goodman spoke via telephone often

during that time period and that Mr. Goodman said that “he was building him a new

house.” Moreover, the Buckners‟ respective testimonies demonstrated that by January

29, 2014, they definitely knew of the Goodmans‟ need to have the Home removed by

February 14, 2014. As the trial court noted, Mr. Goodman‟s testimony was unrefuted

that Mr. Buckner failed to provide $1,000 as reimbursement for the construction loan

penalty when Mr. Goodman offered him the opportunity to do so as a means of extending

the time for performance of the Contract.

16

We determine that the trial court properly utilized parol evidence to find that the

parties‟ conduct and statements indicated a reasonable deadline for removal of the Home

from the Property by February 14, 2013. See Allstate Ins. Co., 195 S.W.3d at 612;

Pylant, 174 S.W.3d at 156 (“Whether the term „reasonable‟ is written into the contract by

the parties or is implied into it by the courts, „reasonable‟ does not mean unlimited.”).

We further determine that inasmuch as the Buckners‟ failure to timely remove the Home

deprived the Goodmans of their reasonable expectation of timely closing on their

construction loan without penalty, see McClain, 806 S.W.2d at 199, the evidence does

not preponderate against the trial court‟s finding that the Buckners materially breached

the Contract. The trial court therefore did not err by dismissing the Buckners‟ complaint

against the Goodmans.

V. Intentional Interference with Contractual Relations

Regarding their complaint against the Mayeses, the Buckners contend that the trial

court erred by dismissing their claim for intentional interference with contractual

relations. Tennessee Code Annotated § 47-50-109 (2013) provides:

It is unlawful for any person, by inducement, persuasion,

misrepresentation, or other means, to induce or procure the breach or

violation, refusal or failure to perform any lawful contract by any party

thereto; and, in every case where a breach or violation of such contract is so

procured, the person so procuring or inducing the same shall be liable in

treble the amount of damages resulting from or incident to the breach of the

contract. The party injured by such breach may bring suit for the breach

and for such damages.

See Whalen v. Bourgeois, No. E2013-01703-COA-R3-CV, 2014 WL 2949500, at *12 n.2

(Tenn. Ct. App. June 27, 2014) (“We note that the common law action of „intentional

interference with contractual relations‟ is alternatively referred to as „procurement of

breach of contract,‟ as well as the statutory action‟s title of „inducement to breach a

contract.‟”) (citing Jones v. LeMoyne-Owen Coll., 308 S.W.3d 894, 908 (Tenn. Ct. App.

2009)).

The trial court found in its memorandum opinion that upon the Buckners‟ material

breach of the Contract, there was no longer an enforceable contract between the Buckners

and the Goodmans. The court thereby found that the Goodmans could not have

committed a breach of contract caused by the Mayeses‟ conduct. The court also found

that the Buckners demonstrated “no intent to induce a breach” and “no malicious

behavior” on the part of the Mayeses. Upon our thorough review of the record, we

17

determine that the evidence preponderates in favor of the trial court‟s findings on this

issue.

As a threshold matter, the Mayeses assert that the Buckners have waived appeal of

the trial court‟s dismissal of this claim by failing to comply with Tennessee Rule of

Appellate Procedure 27(a)(7) as it pertains to the applicable argument section of the

principal brief. The Mayeses argue that because the Buckners failed to cite to the record

in the relevant argument section, except for a citation to the Contract as an exhibit, and

cited to only one “outdated” decision of this Court as an authority, the Buckners failed to

include “citations to the authorities and appropriate references to the record . . . relied

on[.]” See Tenn. R. App. P. 27(a)(7). In their reply brief, the Buckners have responded

by explaining that they had included citations to the record in the factual section of the

principal brief but had inadvertently omitted the citations from the relevant argument

section. The Buckners have repeated much of their original argument concerning this

issue in the reply brief with the addition of citations to the record.

The Mayeses also assert that the Buckners cited outdated law by addressing only

three elements of a common law or statutory claim of intentional interference with

contractual relations or inducement of breach of contract, pursuant to Tennessee Code

Annotated § 47-50-109. In the decision cited by the Buckners in their principal brief,

Quality Auto Parts Co. v. Bluff City Buick Co., 876 S.W.2d 818, 822 (Tenn. 1994), our

Supreme Court stated: “In order to establish such a cause of action, a plaintiff must

prove that there was a legal contract, of which the wrongdoer was aware, that the

wrongdoer maliciously intended to induce a breach, and that as a proximate result of the

wrongdoer‟s actions, a breach occurred that resulted in damages to the plaintiff.” The

Mayeses cite this Court‟s more recent decision in Whalen, 2014 WL 2949500, in which

this Court explained:

As to the interplay between the common law and statutory actions, our

Supreme Court has explained:

Tennessee recognizes both a statutory and common

law action for inducement to breach a contract, see Tenn.

Code Ann. § 47-50-109 (2001); Polk & Sullivan, Inc. v.

United Cities Gas Co., 783 S.W.2d 538, 543 (Tenn. 1989),

and both forms of the action are identical, except that a

plaintiff asserting a common law action may recover punitive

damages, instead of the treble damages mandated by the

statute. See Buddy Lee Attractions, Inc. v. William Morris

Agency, Inc., 13 S.W.3d 343, 360-61 (Tenn. Ct. App. 1999).

In order to recover on a theory of inducement to breach a

18

contract, a plaintiff must allege and prove seven elements:

(1) that a legal contract existed; (2) that the defendant was

aware of the contract; (3) that the defendant intended to

induce a breach of that contract; (4) that the defendant acted

with malice; (5) that a breach of the contract occurred; (6)

that the breach was a proximate result of the defendant‟s

conduct; and (7) that the breach injured the plaintiff. See

Quality Auto Parts Co. v. Bluff City Buick Co., 876 S.W.2d

818, 822 (Tenn. 1994); Baker v. Hooper, 50 S.W.3d 463, 468

(Tenn. Ct. App. 2001).

Whalen, 2014 WL 2949500, at *10-11 (quoting Givens v. Mullikin, 75 S.W.3d 383, 405

(Tenn. 2002)).

Contrary to the Mayeses‟ argument on this point, the Buckners correctly state in

their reply brief that the elements delineated by our Supreme Court in Givens and

subsequently by this Court in Whalen are simply broken down into seven elements but do

not add any new requirements to the analysis provided in Quality Auto Parts, a decision

which has never been overturned or called into question by Tennessee appellate courts.

See id. We determine that the Buckners have substantially complied with Tennessee

Rule of Appellate Procedure 27(a)(7) in their citations to the record and to authorities

such that they have not waived this issue on appeal.

The Mayeses also assert that the Buckners have waived the common law claim of

intentional interference with contractual relations because they have only presented

argument based on the statutory claim in their principal brief. We agree that inasmuch as

the Buckners have requested treble damages, the relief available under Tennessee Code

Annotated § 47-50-109, they have waived any claim to the punitive damages available

under a common law claim. See Whalen, 2014 WL 2949500, at *10.

Regarding the merits of the Buckners‟ statutory claim against the Mayeses, the

Buckners primarily base their argument on the Goodman-Mayes Agreement as purported

proof that the Mayes interfered with the Contract between the Buckners and the

Goodmans. It is undisputed that the Mayeses knew at the time they executed the

Goodman-Mayes Agreement that the Goodmans previously had entered into a contract to

sell the Home to the Buckners. The Buckners argue that Mr. Mayes intentionally and

strategically planned to “compel” the Goodmans to sell the Home to the Mayeses instead.

They also argue that Mr. Mayes subsequently interfered by advising Mr. Goodman that

he might need to tear down the Home to avoid becoming embroiled in a lawsuit with the

Buckners.

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The Goodman-Mayes Agreement, executed by Mr. Goodman and Mr. Mayes on

February 15, 2013, expressly stated that it was a memorialization of an agreement the two

men had reached during a telephone conversation that took place on February 14, 2013.

Mr. Goodman testified that the agreement first came about when Mr. Mayes called him

on the night of February 14, 2013, explaining that he had not been able to move the

Home by the date the Goodmans needed it removed because he had not been able to work

out a contract with the Buckners. Mr. Mayes testified that prior to sending a typewritten

version of the proposed Goodman-Mayes Agreement to Mr. Goodman on February 15,

2013, he discussed it with Mr. Buckner via telephone the night before. Mr. and Ms.

Buckner each respectively testified that they first learned of the Goodman-Mayes

Agreement when they received a voice mail message from Mr. Mayes on February 14,

2013. It is undisputed that the Buckners did not actually see a copy of the Goodman-

Mayes Agreement until it was produced as part of the discovery process.

Having determined that the trial court did not err by finding that on February 14,

2013, the Buckners had materially breached the Contract by failing to remove the Home

from the Property, we further determine that the evidence does not preponderate against

the trial court‟s finding that when Mr. Goodman and Mr. Mayes initially agreed to the

terms of the Goodman-Mayes Agreement, the Buckners no longer had an enforceable

contract with the Goodmans. We note that the Buckners have raised no issue regarding

waiver of a breach and have presented no evidence to indicate that the Goodmans waived

the right to assert a first material breach. See Madden Phillips, 315 S.W.3d at 813 (“A

non-breaching party may . . . waive its right to assert first material breach as a bar to

recovery if it accepts the benefits of the contract with knowledge of a breach.”). Barring

such a waiver, the Buckners could no longer enforce the Contract against the Goodmans

once the Buckners had committed the first material breach. See Markow, 2009 WL

4980264, at *5 (“„[T]here can be no recovery for damages on the theory of breach of

contract by the party who himself breached the contract.‟”) (quoting United Brake Sys.,

Inc. v. Am. Envtl. Prot., Inc., 963 S.W.2d 749, 756 (Tenn. Ct. App. 1997)). Thus, the

Buckners were unable to establish the first element of a claim for intentional interference

of a contractual relationship: the existence of an enforceable contract between them and

the Goodmans at the time that Mr. Goodman and Mr. Mayes reached an agreement. See

Tenn. Code Ann. § 47-50-109; Givens, 75 S.W.3d at 405.

Moreover, even assuming, arguendo, that an enforceable contract between the

Buckners and the Goodmans still existed at the time that Mr. Mayes offered to enter into

a contract with the Goodmans, we also determine that the evidence does not preponderate

against the trial court‟s finding that the Buckners failed to establish the required elements

of intent to induce a breach and malicious action. See id.; see also Prime Co. v.

Wilkinson & Snowden, Inc., No. W2003-00696-COA-R3-CV, 2004 WL 2218574, at *4

(Tenn. Ct. App. Sept. 30, 2004) (noting that in the context of a claim for procurement of

20

breach of a contract, malice is “„the wilful violation of a known right.‟”) (quoting Crye-

Leike Realtors, Inc. v. WDM, Inc., No. 02A01-9711-CH-00287, 1998 WL 651623, at *6

(Tenn. Ct. App. Sept. 24, 1998)) (in turn quoting Dorsett Carpet Mills, Inc. v. Whitt Tile

& Marble Distrib. Co., 1986 WL 622, at *6 (Tenn. Ct. App. Jan. 2, 1986)).

Mr. Mayes testified that his intent in agreeing to move the Home for the

Goodmans upon a promise that he would be paid for his work through sale of the Home,

with first right of refusal in favor of the Buckners, was to find a way to meet the

Goodmans‟ deadline while still maintaining an opportunity for the Buckners to complete

the purchase. While the Buckners assert that Mr. Mayes‟s “malice” was evinced by his

proposal that the Goodmans sell the Home to the Mayeses, they also assert that Mr.

Mayes‟s “malice” was evinced by his comment to Mr. Goodman that he might need to

demolish the Home in order to avoid a lawsuit. As the trial court found, however, the

Buckners would still have been able to purchase the Home under the Goodman-Mayes

Agreement for the cost of removal, a cost to which they had originally agreed in the

Contract. The Buckners presented no evidence to indicate that the Mayeses were

attempting to earn more than their original estimate for moving the Home, and the

Mayeses certainly had nothing to gain from the Home‟s demolition. As the trial court

found, when “Mr. Buckner began accusing them [the Mayeses] of stealing the house

from him . . . that . . . was the final straw that quirked this deal.” We conclude that the

trial court did not err by dismissing the Buckners‟ claim for intentional interference with

contractual relations.

VI. Admissibility of Expert Witness Testimony

The Buckners also contend that the trial court erred by finding that Mr. Thacker‟s

valuation of the Home as it would have been following removal from the Property was

too speculative to be admissible at trial. The Buckners sought to admit Mr. Thacker‟s

testimony in support of the amount of damages they claimed for loss of the Home.

Having determined that the evidence does not preponderate against the trial court‟s

dismissal of the Buckners‟ claims, we further determine that any issue regarding the

admissibility of Mr. Thacker‟s testimony is pretermitted as moot.

VII. Attorney‟s Fees on Appeal

The Goodmans and the Mayeses each respectively raise the issue of whether the

Buckners‟ appeal is frivolous. They each request an award of attorney‟s fees and costs

on appeal pursuant to Tennessee Code Annotated § 27-1-122 (2000), which provides:

21

When it appears to any reviewing court that the appeal from any court of

record was frivolous or taken solely for delay, the court may, either upon

motion of a party or of its own motion, award just damages against the

appellant, which may include but need not be limited to, costs, interest on

the judgment, and expenses incurred by the appellee as a result of the

appeal.

This Court‟s decision regarding whether to award attorney‟s fees on appeal is a

discretionary one. Young v. Barrow, 130 S.W.3d 59, 66-67 (Tenn. Ct. App. 2003).

We determine that this appeal was not frivolous or taken solely for delay. See id.

at 67 (“A frivolous appeal is one that is devoid of merit . . . or one that has no reasonable

chance of succeeding.”). Accordingly, the Goodmans‟ and the Mayeses‟ respective

requests for attorney‟s fees on appeal are denied.

VIII. Conclusion

For the reasons stated above, we affirm the trial court‟s judgment. We deny the

Goodmans‟ and the Mayses‟ respective requests for attorney‟s fees on appeal. This case

is remanded to the trial court, pursuant to applicable law, for enforcement of the trial

court‟s judgment and collection of costs assessed below. The costs on appeal are

assessed against the appellants, Ken Buckner and Brenda Buckner.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

22